Franano v. United States

• Decision Date: 03 June 1960
• Docket Number: No. 16071.,16071.
• Citation: 277 F.2d 511
• Parties: Tom Don FRANANO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F.2d 511 (1960)

Tom Don FRANANO, Appellant, v. UNITED STATES of America, Appellee.

No. 16071.

United States Court of Appeals Eighth Circuit.

April 27, 1960.

Rehearing Denied June 3, 1960.

Joseph E. Stevens, Jr., Kansas City, Mo., filed brief for appellant.

Edward L. Scheufler, U. S. Atty., and O. J. Taylor, Asst. U. S. Atty., Kansas City, Mo., filed brief on behalf of the appellee.

Before GARDNER, VOGEL, and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Circuit Judge.

Appellant and three other persons were charged with violations of the so-called Dyer Act, Section 2312, Title 18 United States Code, in an indictment containing seven counts. The first count charged that defendants, four in number, conspired to transport stolen motor vehicles in interstate commerce, knowing them to be stolen. Fourteen overt acts were charged as committed pursuant to the conspiracy. Counts II through VII were substantive counts and charged the appellant Franano and his codefendant Frank Triola, Jr., with the interstate transportation of certain stolen 1957 Chevrolet automobiles.

Appellant, prior to the opening of the trial, made a motion for leave to inspect and copy grand jury minutes, which motion was denied. The action was tried to the court and a jury. On the morning of the third day of trial, appellant interposed a motion for a mistrial based upon an article appearing in the Kansas City Times which was seen by one member of the jury panel. The motion was denied. At the close of the Government's testimony each of the defendants interposed a motion for acquittal. The motion of one of the defendants, who was included in the charge of conspiracy, was sustained but the motions of all the other defendants were denied. The three remaining defendants submitted no testimony and the case was submitted to the jury on instructions to which appellant saved certain exceptions and also excepted to the refusal of the court to give certain instructions requested by him. The three defendants were found guilty. One of the defendants, Jo Ann King, found guilty only on the conspiracy charge, was put on probation. The remaining defendants, Tom Don Franano and Frank Triola, Jr., on the verdicts of guilty returned by the jury, were sentenced to a term of four years concurrently on each of Counts I, II, and III, and to a term of four years on each of Counts IV, V, VI, and VII, these latter sentences to be served concurrently with each other, but consecutively to the terms on Counts I, II, and III, making a total sentence of eight years.

Appellant Tom Don Franano alone prosecutes an appeal and seeks reversal on the following grounds: (1) the trial court erred in overruling appellant's motion to inspect and copy grand jury minutes; (2) appellant's motion for judgment of acquittal on Counts II, IV, and VII should have been sustained on the grounds that there were fatal variances between the allegations of the indictment and the proof; (3) the trial court erred in overruling appellant's motion for a mistrial; (4) the trial court erred in admitting Exhibits 63 through 68; (5) the court erred in refusing to give defendant's requested instructions Number 13 and 14 and in failing adequately to charge the jury that they must find all essential elements of the offenses charged beyond a reasonable doubt; (6) the trial court erred in admitting irrelevant and immaterial evidence having no probative value of the allegations of the indictment and in refusing to give defendant's requested instruction Number 10; and (7) the trial court erred in overruling appellant's motion for judgment of acquittal as to Counts II, V, VI, and VII on the grounds of the insufficiency of the evidence.

In support of his contention that the court erred in denying his motion for leave to copy the grand jury minutes, appellant urges that there was insufficient evidence before the grand jury to warrant his indictment, alleging that there was but one witness. The showing is far from proving this allegation. Witnesses who appear without being subpoenaed, or who appear pursuant to informal requests of the grand jury or the United States Attorney, do not appear on the records of the district court. It is also argued that the witness whose name did appear on the district court record could not have had personal knowledge of sufficient facts to warrant a finding of an indictment. Such a motion is addressed to the judicial discretion of the trial court and we think the appellant's contention is completely negatived by what is said in Costello v. United States, 8 Cir., 255 F.2d 389 and Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397.

In Costello v. United States, 8 Cir., 255 F.2d 389, 396, referring to Rule 6 (e), Federal Rules of Criminal Procedure, Title 18 United States Code Annotated, we said:

"A trial court unquestionably had the power under Rule 6(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to order the grand jury proceedings transcribed and produced. Such power should be exercised only where there is a clear showing that the ends of justice require it. Lawn v. United States, 355 U.S. 339, 362, 78 S.Ct. 311, 2 L.Ed. 321; Herzog v. United States, 9 Cir., 226 F.2d 561, 566. No such showing was made here and we find no prejudice to either defendant resulting from the court\'s refusal to compel the production and no error."

In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 408, the Supreme Court, speaking on this question, said:

"If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more."

The contention of appellant as to the denial of his motion is, we think, wholly without merit.

We shall consider appellant's contention that there is a fatal variance between the allegations of the indictment in Counts II, IV, and VII and the proof, and his contention that the court erred in denying his motion for acquittal on Counts II, V, VI, and VII, together.

In considering the question of the sufficiency of the evidence to sustain the judgment, we must view the evidence in a light most favorable to the Government and we must assume as proved every fact the evidence, direct or circumstantial, tends to prove, and the Government as the prevailing party is entitled to the benefit of all such favorable inferences as may reasonably be drawn from the facts proved.

In support of his contention that there was a fatal variance between the allegations of the indictment on Counts II, IV, and VII, and the proof, appellant relies strongly on the case of Cox v. United States, 8 Cir., 96 F.2d 41. That case is readily distinguishable on its facts from the instant case. In the Cox case the only proof of identity between the car stolen and the car described in the indictment was the serial number. In the instant case there was positive proof of identity regardless of and without reference to the serial marks. Johnson v. United States, 8 Cir., 195 F.2d 673; United States v. Drexel, 2 Cir., 56 F.2d 588. The variances were therefore not fatal and we deem it unnecessary to consider the other contentions as to the insufficiency of the evidence because invalidation of a particular count is immaterial if the sentence on that count runs concurrently with the sentence on a valid count. Woodford v. United States, 8 Cir., 77 F.2d 861; Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699.

In this connection it should be borne in mind that the jury, in finding appellant guilty on Count I, presumptively, viewing the evidence in a light most favorable to the Government, found him guilty of all the overt acts charged. These overt acts pertained to the transportation of the cars described in Counts II, III, IV, V, VI, and VII. Thus, overt act No. 1 charges that:

"On or about July 9, 1957, Tom Don Franano and Frank Triola, Jr. transported a stolen 1957 Chevrolet from Kansas City, Missouri to Denver, Colorado."

This is the transportation described in Count II of the indictment. Overt act No. 2 likewise described the transportation charged in Count III of the indictment; Overt act No. 4 charged the transportation charged in Count IV of the indictment; Overt act No. 7 charged the transportation charged in Count V of the indictment; Overt act No. 9 charged the transportation charged in Count VI of the indictment; Overt act No. 14 charged the transportation charged in Count VII of the indictment. Other overt acts charged various circumstances connected with the transportation of the automobiles described in the various counts in...